Office of the Attorney General
State of Texas

Re: Whether Family Code section 58.001(c) requires a law enforcement
agency to destroy all information relating to certain juveniles (RQ-879)

Dear Mr. Curry:

You ask several questions about section 58.001(c) of the Family Code,
which requires law enforcement agencies to destroy all information relating
to certain juveniles. Title 3 of the Family Code, chapters 51 through 60,
comprise the Juvenile Justice Code. Chapter 58 governs records relating
to juveniles. Subchapter A relates to records generally, and subchapter
B requires the Department of Public Safety ("DPS") to maintain
a database for a computerized juvenile justice information system. Fam.
Code § 58.102. Juvenile boards are charged with compiling information
for the juvenile justice system on the local level. See id. §
58.105.

You ask about the requirements of Family Code section 58.001, which
is in subchapter A relating to records generally, and provides as follows:

(a) Law enforcement officers or other juvenile justice personnel shall
collect information described by Section 58.104 as a part of the juvenile
justice information system created under Subchapter B.

(b) The information is available as provided by Subchapter B.

(c) A law enforcement agency may forward information, including photographs
and fingerprints relating to a child who has been detained or taken into
custody by the agency to [DPS] for inclusion in the juvenile justice information
system created under Subchapter B only if the child is referred to juvenile
court on or before the 10th day after the date the child is detained or
taken into custody. If the child is not referred to juvenile court within
that time, the law enforcement agency shall destroy all information,
including photographs and fingerprints, relating to the child unless the
child is placed in a first offender program under Section 52.031 or on
informal disposition under Section 52.03. The law enforcement agency may
not forward any information to [DPS] relating to the child while the child
is in a first offender program under Section 52.031 or on informal disposition
under Section 52.03. On successful completion by the child of a first offender
program under Section 52.031 or informal disposition under Section 52.03,
the law enforcement agency shall destroy all information, including
photographs and fingerprints, relating to the child. [Emphasis added.]

You are particularly interested in the requirements of subsection (c).
The language of subsection (c) was added in 1995 by the Seventy-fourth
Legislature<1> in conference committee.
See S.R. 1173, § 18, 74th Leg., R.S. (1995) (suspending Senate
Rule 12.03(4) in order to add subsection (c) to section 58.001 in conference
committee). Because this language was not considered by the legislature
until the very end of the legislative process, we have not been able to
find any legislative history that would shed light on the legislature's
intent. At any rate, subsection (c) is not ambiguous. It plainly requires
a law enforcement agency to destroy all information relating to a child
who has been taken into custody created pursuant to that arrest if the
child is not referred to juvenile court within ten days, unless the child
is placed in a first offender program under Family Code section 52.031
or on informal disposition under Family Code section 52.03. In the event
a child is placed in a first offender program or on informal disposition,
the law enforcement agency must destroy all information relating to the
child created pursuant to that arrest if the child successfully completes
the program or informal disposition.

Your first questions focus on the meaning of the phrase "all information"
in the second and fourth sentences of subsection (c). First, you state
that a juvenile and an adult may be arrested at the same time for the same
offense, and that the arrest report will include the names of both individuals.
In other cases, two or more juveniles may be arrested and the arrest report
will include all their names. In the event the child (or, in the latter
case, one of the children) is not referred to juvenile court or successfully
completes a first offender program or informal disposition, you ask whether
subsection (c) requires a law enforcement agency to destroy the entire
arrest report. Subsection (c) speaks in terms of information rather than
documents or records. For this reason, we do not believe it requires the
destruction of the entire arrest report. The redaction of the report to
remove any information identifying the child who was not referred to juvenile
court or who successfully completed a first offender program or informal
disposition would appear to satisfy subsection (c). We note, however, that
section 58.007 requires that law enforcement records and files concerning
a child shall "be kept separate from adult files and records."
This would appear to require that separate records, including arrest reports,
be made for a juvenile arrestee in the first situation you describe.<2>
Finally, we stress that section 58.001(c) requires only the destruction
of information relating to a child created pursuant to the arrest. It does
not require the destruction of information in the possession of a law enforcement
agency pertaining to the child that was not created pursuant to the arrest,
such as information in other records or files obtained prior to the arrest
not directly related to the arrest.

You ask whether information must be destroyed regardless of its form
and if it must be destroyed within a certain time period. Subsection (c)
uses the words "all information." It applies to all information
discussed above within the possession of the law enforcement agency regardless
of its form, including information in computerized form. Subsection (c)
does not specify a time period within which information must be destroyed.
Section 58.002, however, requires a law enforcement agency to certify that
photographs and fingerprints required to be destroyed under section 58.001
have been destroyed at the end of each calendar year. Fam. Code §
58.002(b). Section 58.002 appears to contemplate that photographs and fingerprints
must be destroyed before the end of the calendar year in which they are
collected. With the exception noted below, we believe that it would be
reasonable for a law enforcement agency to use this timetable for the destruction
of all other information under section 58.001(c).<3>
It would be difficult for a law enforcement agency to justify the retention
of information for any greater length of time, given the requirements of
section 58.002.

Information relating to a child who has successfully completed a first
offender program must be retained for 90 days after the date the child
completes the program for the following reason. Section 52.031(j) provides
that the case of a child referred for disposition under a first offender
program must be referred to juvenile court if "the child completes
the program but is taken into custody . . . before the 90th day after the
date the child completes the program for conduct other than the conduct
for which the child was referred to the first offender program." Id.
§ 52.031(j)(3). Destruction of all information relating to the child
pursuant to section 58.001(c) before the 90th day after the date the child
completes the program would impede the enforcement of this requirement.
Section 52.031(j) and section 58.001(c) were enacted in the same legislation<4>
and must be harmonized if possible. Cf. Gov't Code § 311.025.
They can be harmonized by construing section 58.001(c) not to require the
destruction of information relating to a child who has completed a first
offender program before the 90th day after the date the child completes
the program.

Next, you ask about the effect of the destruction of information under
section 58.001(c) on a law enforcement agency's ability to administer a
first offender program. You state that if information

on a juvenile is destroyed upon completion of a first offender program
or informal disposition, there will be no way for the [law enforcement
agency] to determine if a child has been [a] first offender or not. In
effect, a juvenile could possibly have the option to participate in a first
offender program on more than one occasion without the existence of the
records to demonstrate to the contrary.

Your question assumes that a child who has successfully completed the
first offender program or informal disposition is thereafter ineligible
for referral to the first offender program. Section 52.031(d)(1) provides
that a law enforcement officer may refer a child to the law enforcement
officer or agency designated to process children under the first offender
program for disposition under the program if "the child has not previously
been adjudicated as having engaged in delinquent conduct." Nothing
in section 52.031 (with the exception of the limited circumstances set
forth in subsection (j) as discussed above) suggests that a child who has
successfully completed the first offender program or informal disposition
is ineligible for referral to the first offender program. Section 52.031
is plain on its face. It is within the province of the legislature, not
this office, to amend section 52.031 to tighten the eligibility requirements
for the first offender program.

Finally, you express concern that the destruction of information under
section 58.001(c) will negatively affect various operations of law enforcement
agencies.<5> You point out, for
example, that the destruction of information could affect law enforcement
agencies' ability to evaluate juveniles' continuing contacts with police
and to pursue leads in investigations of major crimes. As noted above,
section 58.001(c) does not require a law enforcement agency to destroy
all information in its possession relating to a juvenile, but rather all
information relating to the juvenile created pursuant to the particular
arrest. Furthermore, although we understand your concerns about the impact
of section 58.001(c), in enacting this provision the legislature appears
to have balanced the privacy interests of children and law enforcement
interests. It is for the legislature, not this office, to evaluate the
effectiveness of this balance and to amend the statute if necessary.

S U M M A R Y

Family Code section 58.001(c) requires a law enforcement agency to destroy
all information relating to a child who has been taken into custody created
pursuant to the arrest if the child is not referred to juvenile court within
ten days, unless the child is placed in a first offender program or on
informal disposition. In the event a child is placed in a first offender
program or on informal disposition, the law enforcement agency must destroy
all information relating to the child created pursuant to the arrest if
the child successfully completes the program or informal disposition.

Subsection (c) requires the destruction of all information relating
to a child created pursuant to an arrest in the possession of a law enforcement
agency regardless of its form, including information in computerized form.
Subsection (c) requires the destruction only of information relating to
the child created pursuant to the arrest and does not necessarily require
the destruction of entire documents. Family Code section 58.007 requires
that law enforcement records and files concerning a child shall "be
kept separate from adult files and records." It would be reasonable
for a law enforcement agency to destroy information relating to a child
created pursuant to an arrest by the end of the calendar year in which
it is collected. Information relating to a child who has completed a first
offender program, however, must be retained for ninety days after the date
the child completes the program.

<2> After redacting information relating to the
arrest of a juvenile from an adult arrest record, we believe it would be
permissible for a law enforcement agency to indicate in the adult arrest
record that the adult was arrested with a juvenile, if the identity of
the juvenile is not disclosed, or, alternatively, to list the juvenile
as a witness to the offense, if there is no indication that the juvenile
was arrested. We also note as a general matter that the requirement in
Family Code section 58.007 that law enforcement records and files concerning
a child shall "be kept separate from adult files and records"
requires that a law enforcement agency must maintain wholly separate filing
systems for juveniles and adults, but it does not prohibit information
about a juvenile from appearing in an adult record or information about
an adult from appearing in a juvenile record. (Back to opinion)

<5> You list 11 areas of concern. It is not clear
from the items on this list whether you intend to ask about the interaction
of section 58.001(c) and other particular statutory requirements or merely
to express your concern about the effect of section 58.001(c) on law enforcement
operations in general. In the event that you have questions about the implications
of section 58.001(c) for particular statutory requirements, please present
and brief those questions specifically. (Back to opinion)